Kenya Anti-Corruption Commission v Peter Oloo Aringo & 3 Others [2020] eKLR

Case Caption:

In the Environment and Land Court at Kisumu; Land Case No. 886 of 2016 (Formerly HCC 114 of 2009); Kenya Anti-Corruption Commission v Peter Oloo Aringo, Trans National Bank Ltd Vyatu Limited & Wilson Gacanja

Case URL:

http://kenyalaw.org/caselaw/cases/view/191517

Summary Significance:

An illegally acquired title does not pass good title to the party who acquires it. Consequently, any further transactions founded on the illegally acquired title are illegal.

Applicable laws:

Article 40 of the Constitution of Kenya, 2010
Sections 3 and 7 of the Government Land Act Cap 280; Laws of Kenya (Repealed)
Section 26 of the Land Registration Act No. 3 of 2012

Brief Facts:

The 4th Defendant leased land title number Kisumu Municipality Block 7/411 to the 1st Defendant. The 1st Defendant proceeded to charge the property in favour of the 2nd Defendant. He however defaulted on the loan, and the 2nd Defendant sold the land to the 3rd Defendant through an auction. The Plaintiff in the case sought orders declaring the lease to the 1st Defendant, the subsequent charge in favour of the 2nd Defendant and the transfer of the suit land to the 3rd Defendant void and ineffectual to confer a good title. The Plaintiff averred that the suit land belonged to the Kenya Railways Corporation and was vested in it for use as a railway reserve.

Issues for Determination:

I. Whether the 4th Defendant validly alienated the land to the 1st Defendant
II. Whether the charge created in favour of the 2nd Defendant was legal
III. Whether the transfer by the 2nd Defendant in favour of the 3rd Defendant was legal

Holding:

The court held that the 4th Defendant could not lawfully allocate the land to the 1st Defendant. This is because the suit land was alienated Government land already designated for use as a railway reserve. Further, even if the suit land was unalienated, the authority to allocate such land vested only in the President under Section 3 of the Government Lands Act. On the second issue, the court held that the charge was illegal as the 2nd Defendant ought to have known that the suit land was Government land as the same had been gazetted. On the third issue, the court held that the transfer was illegal as there existed no valid charge in the first place. In light of this, the court declared the lease issued by the 4th Defendant, the subsequent charge over the suit property and the transfer to the 3rd Defendant void ab initio. The court also ordered that the land register be rectified by cancellation of the lease over the suit property. Further, the 2nd Defendant was ordered to refund the 3rd Defendant Kes. 3,300,000 plus interest. Finally, the court ordered the 1st, 3rd and 4th Defendants to pay the costs of the suit.

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